Dear Aunt Sadie, Please Step Back From The Net Neutrality Ledge

In the 25 years I’ve been toiling in the mines of tech policy, I’ve developed what I call the Aunt Sadie test. Most of the issues I research and write about are woefully technical, legal, economic and boring; of interest to more and more people here in Silicon Valley as the information economy increasingly becomes the economy, but, still, relatively obscure.

But every now and then, I’ll get a call from a friend I’ll refer to as “Aunt Sadie,” someone who avidly uses technology but is not involved in its creation, marketing, or regulation.

“What’s this I hear about the U.N. taking over the Web?” Aunt Sadie will ask. “Am I for or against SOPA?” And, of course, last week, “How can we stop the FCC from destroying the Internet?”

Aunt Sadie is politically tuned in, a long-time California progressive who reads plenty of Internet news sites and gets lots of solicitations from various public interest groups who want her to help fund their campaigns to overturn this or support that.

So when I hear from Aunt Sadie on an issue of tech policy, I know that the shark has been thoroughly jumped.

It means she’s been blasted with overheated and oversimplified media accounts of what is inevitably a complicated question of technology and policy, followed up by feverish pitches from advocacy groups hoping to capitalize on the chaos, shoehorning the issue into often unrelated agenda.

Emotions, which have been running extra-high since the 2016 election, are on a hair-trigger. It takes less and less to tip over into the domain of hysteria on any policy matter—whether it’s health care, tax reform, immigration, or environmental regulation.

Though Aunt Sadie is a thoroughly rational individual with a healthy skepticism, her call signals that the time for facts and logic on the issue is at least, temporarily, over.

So it was last week when the FCC announced, to no one’s surprise, that it would be voting in mid-December to undo much if not all of the Commission’s 2015 Open Internet order, a four-hundred page monster that, almost as an afterthought, attempted to codify rules limiting the network management practices of ISPs--the third such effort to do so after courts twice told the agency it had no legal authority to do so,.

The FCC has always referred to these efforts as “Open Internet rules.” But everyone else, for better and for much worse, knows them as “net neutrality.”

Once again, the rules are being rewritten. Once again, the pitchforks and torches are in hand. And once again, the only real and effective solution is being ignored: legislation from Congress, versions of which have been floating around Capitol Hill for almost a decade. (More on that in a moment.)

One, two, three: What are we fighting for? No, seriously, what?

Originally a term of art coined by a law professor to popularize Internet design principles including peered connections and packet-switching algorithms, “net neutrality” has come to stand for, well, pretty much anything, gathering political debris like a snowball rolling down a mountain, until the term has become weirdly partisan and utterly meaningless. It’s now “about” everything from free speech to democracy to “fairness on the Internet.”

In the wake of the net neutrality debate, a longstanding bi-partisan policy to leave the Internet largely to regulation by the engineering groups who built and maintain it has been decimated.

That, in any case, is the view of the current FCC Chairman, Ajit Pai, who dissented strongly, while a Commissioner, from the 2015 Order and who has promised since being named Chairman of the agency earlier this year to restore Internet governance to the state it was in for the twenty years prior to 2015.

During that period, a bi-partisan consensus of Congress, the White House and the FCC stayed out of the Internet regulation business, following the command of a 1996 law to encourage broadband deployment by leaving it “unfettered by Federal or State regulation.”

Throughout that time, there were, contrary to popular myth, no enforceable net neutrality rules. The FCC did not police ISP network management practices, or prohibit specific conduct.

That was left to the Federal Trade Commission, using general consumer protection and anti-competition laws. Prior to 2015, the FTC pursued over a hundred complaints against ISPs and others in the Internet ecosystem.

In fact, the 2015 Order explicitly cut off the FTC’s jurisdiction over broadband companies, one of the many negative side-effects Pai’s proposal would reverse.

As I’ve written before, the net neutrality fight long ago stopped being about how to regulate network management principles prohibiting blocking, throttling, or otherwise discriminating against some packets for anti-competitive reasons.

Now, in 2017, a different majority of Commissioners will be reversing that decision, at least the sixth such change of policy in the last ten years. And, unless and until Congress steps in, it will certainly not be the last time.

But each time the Commission or the courts have reversed course, the public attention becomes heightened, the rhetoric becomes more over-the-top, and the likelihood of reasoned policy debate becomes slimmer. The calls from Aunt Sadie come earlier, and with more urgency.

Four, five, six: Open up the pearly gates

To be clear, I support Pai’s proposal, which cites my research on disruptive technology and the danger to innovation in the Internet ecosystem of the open-ended public utility powers the FCC granted itself in 2015.

To maintain the Open Internet principles themselves and carry through on Pai’s pledge to uphold the FCC’s longstanding support for the Open Internet, the new plan proposes to replace the 2015 Order’s specific prohibitions and a dangerous “General Conduct Standard” (which even fierce opponents of Pai’s current proposal argue is illegal and overreaching) with a strong transparency rule.

The enhanced transparency rule will require ISPs to disclose how they are managing their networks. It will be enforceable by the FCC, the FTC and the Department of Justice, shoring up existing laws that protect consumers and competition.

It’s not the same as the 2004, 2010 or 2015 versions of net neutrality. But it’s also not the “repeal,” “destruction” or “killing” of net neutrality.

(Most of vitriol over the Commission’s new plan appeared before the draft order—which runs over 200 pages—had even been released. It presumably remains unread by most.)

My support for the proposal is not partisan. Believe it or not, I do not hate the Internet, nor do I want or expect it to be destroyed by undoing some of the rules, none of which existed before 2015 and which only barely got past a federal court challenge a little over a year ago. (The agency has yet to bring a single enforcement action.)

Rather, as regular readers of this column know, my technology policy lodestone is simple if not simplistic: the accelerating speed of technological change invariably outweighs the ability of regulators to keep up. The law of unintended consequences takes over quickly and dangerously, often undoing any benefits from interventions entered into with the best of intentions.

Instead, new technologies and the engineers, entrepreneurs and investors who develop it do a much more effective job of regulating than traditional governments.

Markets are imperfect, but here they work extraordinarily well, as evidenced by the health of the U.S. Internet economy. When they do fail, regulatory solutions should be narrowly tailored, and adopted only when the costs of enforcing them are less than the costs of simply leaving thing alone and waiting for the next generation of technology to reset the game.

As I wrote earlier this year, I had expected the agency to leave the other 2015 rules on the books with an uncertain legal foundation for now. But I respect the agency’s legal experts and their view that the agency never had the authority from Congress to pass them in the first place.

Beyond technical and economic safeguards, the enhanced transparency requirement from the FCC and the return of authority to the FTC to enforce it, along with general consumer protections and anti-competition laws, will give Internet users the legal backstop they need to maintain the Open Internet.

Though less specific (and less dangerous) than the 2015 rules, the 2017 replacement still provides more legal protection than existed prior to 2015. Not less, and certainly not none.

But that, of course, is an argument from facts and logic, costs and benefits, law and policy--unlikely to carry much weight in the present climate of rage and hysteria.

There’s little point, at least for now, in reciting other relevant facts—including that the FCC has long acknowledged that net neutrality violations are almost entirely theoretical and that its attempts to pass enforceable rules have been, to use the agency’s own oft-repeated term, “prophylactics.”

Or that ISPs have little business incentive to destroy the Internet, and that in most of the U.S. consumers can and do easily switch companies if they object to the network management practices of their current broadband provider—a potent prophylactic. According to recent data, over 75% of Americans have a choice of at least two or more fixed home providers even at the highest speeds, not counting the four national mobile carriers, whose speeds increasingly compete with fixed services.

Or that some applications—video, autonomous vehicles, the Internet of Things, tele-medicine—already or will soon require prioritized treatment, long a feature of the Internet’s actual architecture.

Or that paid Internet “fast lanes” already exist, offered not by mercenary ISPs but in the proprietary backbones of Google, Facebook, Netflix, Amazon, Apple, Microsoft and others, or from Content Delivery Networks and other paid transit services offered to everyone by unregulated companies including Akamai,Limelight, and Cogent--non-neutral technology, but essential to keep the Internet, and especially highly popular video traffic, moving.

Or that prior to 2015, public utility regulations designed for the former Bell System had never applied to cable, satellite, mobile or fiber-based Internet access.

Call your Congressman, do it now, but ask for something useful

But assume none of that is relevant and assume, like Aunt Sadie, that the principles of the Open Internet are so central to your experience of online life that you believe the federal government should regulate it and enforce it. What then?

It should be clear to everyone by now that leaving the specifics of that remedy to the discretion of successive chairmen of the FCC is an untenable solution.

The courts have now ruled that Congress left the classification of ISPs to the discretion of the Commission, meaning that whatever you think of the 2010, 2015, or 2017 Open Internet orders, the next FCC Chairman will have her or his own view, and this cycle of chaos will start anew, perhaps indefinitely. Chairman Pai’s proposal is, notably, the sixth reversal of policy in the last decade.

Whatever outcome you are hoping for, in other words, won’t last long even if you get it.

That’s why I continue to urge Aunt Sadie and everyone else who will listen to bring an end to this wasteful debate by demanding that Congress decide once and for all how broadband Internet should be regulated, and by whom.

Congress can--and I believe should--pass specific net neutrality rules, and should settle the question of how enforcement should be split (or not) between the FCC and the FTC.

Indeed, several net neutrality bills have floated in Congress over the last several years. All of them are short, and differ little in most material respects. They all create enforceable net neutrality rules, and give the FCC authority to enforce them.

Rep. Waxman’s bill, for example, was based on a framework agreed in 2010 by Google and Verizon. The Thune/Walden bill was based on the FCC’s 2010 version of the rules (struck down by the courts), with considerably more teeth than Waxman’s version.

Negotiating a bi-partisan bill, given the minor differences, would take little time. And perhaps now that the FCC is poised to return the status quo to where it was in 2015, Congress, as I suggested last month, will take both the need and opportunity seriously.

So, dear Aunt Sadie, please step back from the net neutrality ledge. The Internet as we know it is still not coming to an end.

On the other hand, if you or anybody else wants to channel your understandably strong feelings about protecting the truly remarkable value we’ve created in the Internet over the last ten years into something that might actually help, don’t just take to Twitter or Reddit to rant.

Don’t sign petitions. And don’t funnel more money to public interest groups who pledge vaguely to “fight” for net neutrality.

But don’t waste time demanding that they somehow stop the FCC vote next month (they cannot). Ask instead for something both concrete and within their power—and something that will actually secure enforceable net neutrality rules.

Ask them to pass legislation that will settle the Open Internet fight, once and for all.

It's either that or find ourselves right back on the same precipice, starring into the same abyss, time and time again.